methods used to resolve civil disputes Flashcards
what are the three methods?
mediation, conciliation, arbitration.
what is judicial determination?
a decisions by a judge following a hearing/trial.
what two institutions/bodies?
Victorian Civil and Administrative Tribunal (VCAT), Consumer Affairs Victoria (CAV).
what is mediation?
a cooperative, joint problem-solving process in which parties sit down and discuss the issues, develop opinions, consider alternative and try to reach an agreement through negotiation.
who is involved in mediation?
a mediator - an independent third-party trained in assisting parties to negotiate.
what does the mediator do?
helps to facilitate communication between the parties but does not make suggestions on how to resolve the dispute.
is mediation conducted in private?
yes.
are there strict rules of evidence and procedure in mediation?
yes because it is a facilitated discussion.
who makes the final decision?
made by the parties through agreement, a settlement.
what is a deed of settlement?
a legally binding document that outlines the agreement the parties have come to in mediation.
how is conciliation different to mediation?
everything is the same except for the conciliator. the conciliator plays a more active role than a mediator, as they make suggestions to assist the parties come to agreement.
what is arbitration?
an independent third party (arbitrator) listens to both sides present their case and makes a decision that is binding and enforceable (known as an arbitral award).
what two main ways is arbitration used in Victoria?
private arbitration and by the magistrates court for civil claims under $10,000.
what is private arbitration?
usually for commercial disputes where the parties have agreed in their contract that any dispute that arises between them will be resolved by arbitration.
what is ‘by the magistrates court for civil claims under $10,000?
- court is not required to conduct the proceeding in a formal manner.
- court is not bound by rules of evidence and may inform itself on any matter it thinks fit.
- court is bound by rules of natural justice (procedural fairness.
